State of New South Wales v Fisk

Supreme Court of NSW|2013-03-25|Before: Beech-Jones J, Howie J, Garling J

Background and Criminal Offences 24Mr Fisk was born on 9 June 1948. Despite the wealth of material provided to the Court concerning his offending behaviour nothing much was revealed as to his family or life background outside of that context. He is presently aged 64. 25The relevant aspects of Mr Fisk's criminal history are as follows. They are in part taken from the judgment of Howie J in State of New South Wales v Fisk at [28] to [42]. 26In 1974, Mr Fisk was due to stand trial in Victoria for various offences involving sexual acts with a boy aged thirteen committed between March and June of 1973. He absconded. 27In 1989, Mr Fisk was sentenced in the District Court at Parramatta for offences of supply and conspiracy to supply prohibited drugs. For each offence he was sentenced to imprisonment for five years with a non-parole period of three years to commence 31 March 1989. According to Howie J (at [29]): "These offences involved a police officer and a person who also became notorious for his sexual offences against young males, Robert Joseph (Dolly) Dunne. The defendant [ie Mr Fisk] was aged 41 at the time of the offences. The drug at the centre of the charges was amphetamine belonging to an associate of Dunne who had been arrested by police. The arresting police were unaware of the existence of the drug that was then supplied by the defendant and his co-offenders. The defendant was sentenced on the basis that he was to give evidence against the police officer." 28In the latter part of his prison term Mr Fisk was extradited to Victoria to face the charges dating back to 1974. He pleaded guilty to ten offences, being three counts of indecent assault on a male person, two counts of buggery with a person under the age of fourteen years, three counts of buggery, and two counts of being a party to the commission of an act of gross indecency. The effective sentence imposed was two and a half years with a non-parole period of fifteen months. This appears to have reflected a discount for the assistance that he gave and was providing to the authorities. In his sentencing judgment, Byrne J of the Supreme Court of Victoria stated: "The offences to which you pleaded guilty are very serious and indicated a breach of trust towards your victim. You had obtained the confidence of his father and, as a result, were given an opportunity to act as a teacher for him and as an older friend. In these circumstances, and to that extent, you breached his father's confidence in you and you also took advantage of your victim. According to him, he is still emotionally affected by your conduct." 29In 1994, Mr Fisk gave evidence to the Wood Royal Commission. He was placed in witness protection. Shortly afterwards he moved to Thailand. He returned to Australia in 1997. 30In 1998, Mr Fisk was sentenced in the District Court of New South Wales for 24 sexual offences. The offences involved three male victims. The first was aged fourteen years when the offences began and nineteen when they ceased. There was one charge of indecent assault and eight charges of buggery concerning this victim, but they were said to have been representative of "some hundreds" of sexual acts against that victim. The offences were committed between March 1974 and August 1978. In relation to this victim, the sentencing judge, Judge Shillington stated: "The first victim was introduced to you by another and you and he lived together at Rose Bay, Collaroy and Manly. The victim's parents had separated and he was having family problems, not attending school and running away. You became a friend of the family and took the boy away on holidays. You further discouraged the boy from seeing his family and that relationship between you and he extended between the ages of 14 and 19 years of age." 31The offences involving the second victim were said to have been committed between 1986 and 1988 when that victim was aged between thirteen and fifteen. They involved Mr Fisk having intercourse without the consent of a person under the age of sixteen, homosexual intercourse and indecent assaults. The victim was given alcohol, and was asleep when Mr Fisk committed the offences, which included digital penetration of his anus. In respect of this victim, Judge Shillington said: "You met the second victim at Blackheath and he was then 13 years of age. You met him outside a hotel. He was invited in for chips and drinks. His parents had separated when the boy was two years of age. In mid 1986, acts of sexual abuse commenced between you and him. He commenced to stay overnight at your premises and later moved in with his father. As a result of that, which was encouraged by you, you obtained greater access to the boy. In 1987 he ran away from home and lived with you between July 1987 and March of 1989. The boy himself suffers from deafness, having but 20% of normal hearing. Alcohol and marijuana were used by you to obtain your desires." 32The offences involving the third victim were committed between January and July 1988. They involved sexual intercourse and indecent assaults. One of the offences involved digital penetration of the complainant's anus. The offences were said to be representative of over a thousand similar offences committed between January and July 1988. Judge Shillington stated the following concerning the circumstances of those offences: "The third victim was a friend of the second boy. He was invited to you home at Helensburgh and the offences numbered 18 to 22 in the list of charges on the indictment, were committed whilst he was intoxicated by alcohol and marijuana. He has no personal recollection of what happened. As I have said, the last two offences occurred and comprised masturbation and penetration of his anus by your finger." 33As can be expected, Judge Shillington described the devastating effect of all these offences on Mr Fisk's victims. Judge Shillington sentenced Mr Fisk to a total term of imprisonment of twelve years with a non-parole period of nine years. 34Mr Fisk sought leave to appeal from the sentences imposed on him by Judge Shillington. He was granted leave to appeal, but his appeal was dismissed on 21 July 1998 (R v Fisk (Court of Criminal Appeal, Spigelman CJ, Sully and Ireland JJ, unreported). Sully J, with whom Spigelman CJ and Ireland J agreed, stated inter alia: "The applicant did not make any secret of the fact that the twenty-four particular matters charged against him, and to which he pleaded and stood for sentence, were manifestations of a life style in which he had regularly indulged [over] a period of years before 1989. ... But it is, I think, worth stressing, yet again, that [Mr Fisk's] behaviour constituted a course of appalling sexual abuse on vulnerable young boys over a lengthy period of time. It can not be disputed, it seems to me, that public opinion, and I mean by that reasonable, intelligent and properly informed public opinion, would find utterly abhorrent that course of conduct, and would think that any significant interference with the practical effect of the sentences imposed in the Court below was not conducive to the maintenance of [a] proper level of public confidence in the administration of justice according to law." 35On 13 October 1999, Blanch CJ sentenced the defendant in the District Court for three counts of buggery. Two of the offences were committed between June and September 1971. The victim was fifteen at the time. The other offence was committed between March 1972 and March 1973. The victim of that offence was an aged fifteen years. Five offences were taken into account on a Form One. Blanch CJ noted the offences were of a similar kind to those dealt with by Judge Shillington. His Honour imposed a fixed term sentence of four years to date from the date the sentence was imposed. 36Although the sentence imposed by Judge Shillington was such that Mr Fisk was eligible for release on parole on 12 May 2006, parole was not granted. Instead, he served the balance of his sentence in custody. He was released on 12 May 2009. 37It is necessary to note at this point that each of Mr Fisk's victims was aged under sixteen when he first met them and violated them. His conduct involves a clear modus operandi of befriending and providing for a vulnerable youth who was often disaffected from their family. He exploited and manipulated them by blandishments. Often he would supply alcohol and sometimes illegal drugs. The particular offences with which he was charged were said to be part of his "life style". The circumstances of the offences reveal that Mr Fisk was a dangerous sexual predator. 38Two further matters should be noted. First, at the time some of the offences were committed by Mr Fisk, there was a legislative restriction on sexual intercourse between males, irrespective of their age or consent. The injustice of such a regime has been well-recognised and addressed. As I explained below, there is now a uniform age of consent of sixteen years in the Crimes Act 1900, which does not discriminate on the basis of sexual orientation. However, the conduct actually proven against Mr Fisk, namely sexual intercourse with young males, would still constitute an offence now, and most, if not all, of that offending conduct would meet the definition of a "serious sex offence" within s 5(1) of the Act. 39Second, since the time Mr Fisk committed these offences, further offences have been created which address an anterior stage of predatory sexual behaviour towards children. In particular, s 66EB of the Crimes Act 1900 proscribes the procuring or grooming of a child under the age of sixteen years for unlawful sexual activity. Subsection 66EB(2) makes it an offence to intentionally procure a child for "unlawful sexual activity". Subsection 66EB(2A) makes it an offence for a adult person to intentionally "meet" a child or travel with the intention of meeting a child whom they have "groomed" for sexual purposes and to do so with the intention of procuring the child for unlawful sexual activity with that person or another person. Subsection 66EB(3) makes it an offence to expose a child to indecent material or provide a child with intoxicating substances and to do so with the intention of making it easier to procure the child for unlawful sexual activity. The maximum penalties for these offences range between ten and fifteen years imprisonment. They all constitute serious sex offences within the meaning of s 5(1) of the Act. 40It is important to note that all of the offences created by s 66EB can be committed without the offender in fact having sexual intercourse or directly attempting to have sexual intercourse with a child under the age of sixteen years. It follows that any assessment of Mr Fisk against the test in s 5B(2) of the Act must include a consideration of the risk of him committing one or more of the offences created by s 66EB.

Custodial Programs 41In May 2000, Mr Fisk was assessed as being suitable for participation in a custodial-based intensive treatment program. He could not take up a position in that program until he reached a minimum security classification. Eventually in September 2004 an offer was made for him to participate in the program but he declined it. Further offers were made in May 2006 and August 2006 and on both occasions he declined to participate. Eventually he participated in the Custody Based Intensive Treatment (CUBIT) program from 13 September 2006 to 21 September 2007. The final report concerning Mr Fisk's participation in the CUBIT program stated that upon his entry into the program Mr Fisk appeared "unmotivated to address his offending behaviour" and did not demonstrate any empathy for his victims. Some improvement was reported as he progressed through the course. The overall outcome was generally favourable although the final report noted that: "Mr Fisk may be considered at imminent risk of reoffending when severe emotional disturbance is evident as this may impair his judgment and impact on his self-control. Historically, Mr Fisk has reacted to severe emotional distress by engaging in avoidant coping strategies such as ruminating, isolating himself, abusing drugs and alcohol and gambling. He has also engaged in aggressive behaviour towards others when experiencing stress or under the influence of alcohol and he indicated that he sometimes used sex as a means of coping when stressed. Mr Fisk has been diagnosed with depression in the past and is currently prescribed medication to manage these symptoms. Any of these behaviours or indicators that he is experiencing emotional stress would indicate to others an increasing risk of recidivism. Additionally, loss of social supports through termination of relationships or perceived rejection may also be signs [of] Mr Fisk's increasing risk of reoffending. Similarly, expressions of hostility, angry ruminations or general defiance and recklessness may also indicate an increasing risk, as would associating with pro-criminal others or seeking out child victims." 42The report recommended that he participate in a substantial period of "custody-based maintenance". This was a reference to the Corrective Services custody-based maintenance program, being a psychotherapeutic program designed for men who have committed sexual offences and who have completed a formal structured sexual offender treatment program. His initial period in that program was described by Mr Sheehan, a Corrective Services Department senior forensic psychologist, as follows: "Mr Fisk commenced the Custodial Maintenance Program at the Metropolitan Special Program Centre on the 16/1/08 over three months after completing CUBIT. His initial presentation indicated some regression since CUBIT. He presented as glib, condescending and comfortable with his offences, portraying himself as a political prisoner who had done no harm. Mr Fisk also presented as hopeless, detached from society, with no real attachment to plans for living in NSW after release from custody. He often expressed the firm belief that he would be killed by his enemies if forced to live in NSW. Mr Fisk attended three sessions and then did not return for over three months. OIMS case notes reveal that during this time Mr Fisk explained to his parole officer that he felt he was 'no threat of offending' and that he was 'wasting' the therapist's time." 43Mr Sheehan stated that Mr Fisk returned to the group on 2 July 2008 and apparently made some positive contributions. He continued in that program until his release from custody.

Post-Custody Treatment and Arrangements 44It appears that, following his release from custody, Mr Fisk resided in a Community Offenders Support Program Facility ("COSP"). COSP facilities provide supervised transitional accommodation for offenders for up to approximately six months. In January 2012, he started living in private rental accommodation. In March 2013, he returned to another COSP facility. Mr Fisk has not worked since his release. He receives a disability support pension, he owns a car and has a driver's licence. He is a long-term smoker. Dr Nielssen describes him as having signs of emphysema including plethora and shortness of breath. He had a heart attack on 7 March 2011 and subsequently had stents inserted into a blocked artery. He is taking a number of prescription medications for depression, blood pressure, reflux and high cholesterol. 45As stated, in May 2009 Mr Fisk was released from custody upon the expiry of his sentence. In April 2009 the State commenced proceedings seeking an order under former s 9 of the Act. An interim order was granted by this Court pending the final determination of the proceedings (see State of New South Wales v Fisk at [3] to [4] per Howie J). As stated, on 11 August 2009 Howie J published his judgment and made an ESO. 46It was accepted by the State that Mr Fisk had been compliant with his ESO since that time. This concession appears difficult to reconcile with the evidence concerning an incident on 28 May 2012 which I will address. However, it should be noted that no action for breach was taken concerning that incident. In any event the State contends that Mr Fisk's post-release behaviour nevertheless justifies the making of a further ESO. 47In June 2009 Mr Fisk commenced a maintenance program conducted by the Department of Corrective Services. His progress with this program is summarised in the following extract from a summary prepared in 2012: "Mr Fisk commenced the Maintenance Program on 17/6/09. He attended a total of 58 group sessions, initially on a weekly basis, progressing to fortnightly attendance from 24/3/10. On 16/2/11, Mr Fisk was suspended from the Maintenance [P]rogram due to ongoing difficulties participating effectively in the program, poor insight into treatment issues, and low motivation to change. A Clinical Meeting was convened [on] 29/3/11 to discuss Mr Fisk's participation in the Maintenance [P]rogram. It was decided that the group based program was no longer meeting Mr Fisk's needs. He was moved to individual monthly sessions commencing 12/4/11. Mr Fisk has attended 16 sessions to date. His next scheduled appointment is 14/8/12. Throughout Mr Fisk's time in the Maintenance Program he has demonstrated an ambivalent attitude regarding the need to change and manage current risk factors effectively. He has alternated between acknowledging his offending as abusive behaviour on a number of levels to presenting his offending as a 'decadent lifestyle' involving relationships with consenting young people deemed illegal only by 'this particular society'. Despite this ambivalence, Mr Fisk appears to have developed a comprehensive intellectual understanding of his patterns of thinking and behaviour and is aware of the issues related to his offending. However, on the whole it does not appear that Mr Fisk has developed an emotional acceptance or understanding of offending and this negatively affects his ability to manage his long term risk of re-offending."

Incident on 28 May 2012 48One matter raised in the material concerns Mr Fisk's conduct in communicating with a sixteen year old boy at a railway station in May 2012. 49Tendered before me was a statement the boy provided to the police on the day of the incident, with his name redacted. He states that on the morning of 28 May 2012 he was waiting on the platform when he was approached by a male now known to be Mr Fisk. Mr Fisk asked him when the train would come. The boy says he told him the time and then the male asked him what school he attended. The answer he gave indicated that the boy was interested in acting. The boy recounts Mr Fisk as stating "That's great. You should go on YouTube and broadcast yourself. People put up videos of themselves masturbating and stuff like that." 50The youth said he told Mr Fisk that that was "disgusting" but Mr Fisk only laughed. He described Mr Fisk as having continued the conversation and said that Mr Fisk eventually offered him a cigarette. He said they both boarded a train and continued talking. At one point the male asked if he had a mobile phone and the boy said no. The male gave him his number and asked him to call. The boy said the male told him, "[d]on't tell your mother" and that he was "a very good looking boy". 51Mr Fisk did not give evidence before me. However, he provided versions of events concerning this incident to a number of psychologists and psychiatrists. In his consultation with Dr Ellis on 19 February 2013, Dr Ellis recounts being told by Mr Fisk the following: "He gave an account of interaction with a 16-year-old boy at [the train station] in May 2012. In contrast to the account of the witness, he describes the boy initiating the encounter. He reports that he felt 'in tune' with the boy. He reports that the boy hugged him and this experience was 'really good'. He reports that he would have liked to assist the boy in his cultural development. He reports that he was 'slightly' sexually attracted to the boy. He reported that his interaction with the boy was a 'old habit' and very similar to his previous strategies to engage a young person in sexual activity. He stressed that none of his actions were illegal, or contrary to the conditions of his extended supervision order. He was unable to describe how other persons may view the interaction, or how other persons may view the content of the email he sent to the [boy's] principal. He himself was unable to reflect on how he may be perceived engaging in this behaviour, or how it may herald extension to offending similar to previous [sic]." 52In his consultations with Dr Allnut in February and March 2003, Mr Fisk stated that he was on the platform and: "... he yelled out that he missed his train and the boy came to him; he described the boy as an unusual creature, the boy told him he was 16 years [old], he said the boy was animated; he asked the boy why he was not at school and the boy said that he had to leave his last school and he was going to [a new school] that did performing arts and confided in him that he wanted to go to [an acting school]; he said he thought the boy was unusual and started a chat before the train came; he said he casually suggested to the boy that he had attention deficit hyperactivity disorder and the boy was surprised that he knew that, he told the boy that he had studied singing and opera; he told him he thought he was an unusual boy, he asked him if he was supported in his aspirations to be an actor at home and the boy replied 'not really'; the boy also clarified that he had a stepfather and they got on the train; he said it was the boy who asked him where they could sit, he thought the boy had taken a shine to him; they chatted about acting and actors; the boy said he would like to be in Home and Away and he encouraged him to get involved with Shakespeare; he said that his phone number was written on the back of his phone; he said the boy got off at Blacktown; he said he went to shake the boy's hand and the boy embraced him; he said it felt good that this boy was pursuing something like the arts; he said to the boy he could get his driver's licence." 53Dr Allnut also recalls that Mr Fisk had denied asking the boy for his telephone number. 54The Court was provided with CCTV footage from the train platform of Mr Fisk's first encounter with the youth. It is evident from that footage that Mr Fisk initiated contact with him. At the outset the youth is seen to walk to the far end of a relatively empty train platform. Mr Fisk is seen to walk up to the far end and sit near the youth. They appear to have substantial conversation for some fifteen minutes or so before both boarded the train. 55On 16 August 2012 Mr Fisk sent an email to the headmaster of the school which the youth attended. Mr Fisk asserted that he had a most "meaningfull [sic], enlightening and spontaneous" conversation with a year 11 student who had informed him of his artistic intentions. He romanticised the description of the encounter and then complained about a visit that he received from the police a number of weeks after it occurred. Mr Fisk asserted that the youth's home life was "very wanting and ruled by a domineering presence plugged into a mob mentality vigilantism and maybe fundamentalism". This appears to be a reference to the youth's father, who presumably complained to the police about Mr Fisk's conduct. Mr Fisk asserted in the email that, if the youth emulated that conduct, he would not be accepted in a well-known drama school at which Mr Fisk claimed to have friends. 56I have no doubt in accepting the version of events described by the youth in his statement. It is consistent with the video footage. Most significantly, it is consistent with the probabilities. If the interaction between the two was as harmless as Mr Fisk asserts, how did events transpire that the youth provided a statement to the police? On Mr Fisk's version the youth would have been unlikely to report the incident to either the police or his father. What possible motive could the youth have had for recounting the sexual dialogue that I have noted above if it did not happen? The events recounted by the youth are completely consistent with what is to be expected from someone with Mr Fisk's past pattern of behaviour. 57Mr Fisk's conduct on this occasion was both troubling and revealing. In some respects his contact with the youth resembled aspects of his previous offences. He offered the youth inducements such as cigarettes, and intimated that he could help him in the arts. He sought to deflect the youth away from his parents. This is reinforced by the contents of his email. In that email he self-aggrandises his own position and hints that he could have offered benefits to the young boy's career if he had not been stopped. He denigrates the youth's family. His approach to the entire incident involves a romanticised self-delusion of what in fact occurred, and is one which appears to conform with his self-identity as a hebephile lover of youth whose allegedly meaningful interaction with the youth was thwarted by authority. In my view this incident strongly suggests that extended supervision is required to address the risk of commission of further serious sex offences by Mr Fisk.

Post-Release Reports 58Ms Mahony referred me to a number of reports concerning Mr Fisk since his release from custody. I have considered all the reports that I was taken to. I will mention some. 59In November 2010 a progress report concerning the ESO then in force was provided to the Attorney General or his department. It was prepared by compliance officers from the Department of Corrective Services. It noted that, at that stage, Mr Fisk's response to supervision was considered to be "satisfactory both in relation to his supervision ... and his accommodation requirements". 60Subsection 13(2) of the Act requires the Commissioner of Corrective Services to provide a report to the Attorney General on an offender at intervals of not less than twelve months for the purpose of ascertaining whether to make an application in relation to an extended supervision order. Such a report was provided to the Attorney General or his department on about 12 January 2012. The report describes Mr Fisk's response to supervision as satisfactory and noted his transition to private accommodation. 61Another report for the Attorney General dated 1 September 2012 was prepared by compliance officers. For reasons that were unexplained it bore the description "Completion Report". The report noted that Mr Fisk appeared to accept some responsibility for his past offences, but also noted that at the time he appeared to "down play" his offences, describing them as "hebephilic". The report updated his position concerning his accommodation and noted the incident where he was in contact with the youth at the train station in May 2012. While the report raised various concerns in relation to that incident, it nevertheless suggested a gradual reduction in electronic monitoring. 62Another progress report was provided to the Attorney General on about 12 November 2012. It was not relevantly different to the Completion Report. 63I have referred above to Mr Sheehan's risk assessment report dated 21 November 2012. I was referred to other reports and assessments by Mr Sheehan, but this report and his affidavit encompasses that other material. In that report, Mr Sheehan comprehensively reviewed the material available to Corrective Services in relation to Mr Fisk. He noted the following concerning Mr Fisk's attitude to risk and treatment: "Mr Fisk's attitude to risk and treatment is difficult to judge. As described below, Mr Fisk has participated in an extensive amount of treatment and has made repeated assurances that he would never reoffend. However there appears to be a disconnect between his stated intentions to remain offence free and his ongoing practices such as neglecting his treatment plan, using sex to cope, overuse of pornography, and approaching males of ambiguous age. His undertaking to not re-offending [sic] appears to exist in a vacuum, without a range of behaviours to support that undertaking." 64In comments that have particular resonance to the events at the train station on 28 May 2012, Mr Sheehan stated: "Over the years of treatment, the common goals have been to discourage Mr Fisk from high risk behaviours. Primarily those behaviours involving an idealised sexual focus on males who appear as teenagers, even in instances where the male is above the age of 16 years. He was encouraged instead to cultivate peer aged interests and to explore the possibility of establishing sexual relationships with peer aged males. These attempts would appear to have failed thus far. During the community maintenance program, Mr Fisk has acknowledged exclusive sexual interest in adolescent males and feels that there is no possibility of sexual attraction to adult males. Mr Fisk has reported to struggle to find a sense of meaning in his life without the presence of 'young boys', [saying they] 'inspire [him]'. Furthermore, 'Mr Fisk acknowledged that he regularly engages in sexualised banter with people he meets. He reported that he approaches young people he finds attractive and engages them in discussions to try to work out their age. He reported that once he knows they are over 16 he may make some sexualised remarks to try to find out if they have a girlfriend or if they are homosexual'." (references omitted) 65Mr Sheehan's report also addresses two matters that are of assistance in assessing Mr Fisk's propensity to re-offend. First, he recounts an assessment of Mr Fisk using what he describes in his affidavit as an "actuarial risk assessment instrument" known as Static-99R. Apparently, this is a widely used instrument which assists in the prediction of sexual and violent recidivism for sexual offenders as a group. In his report Mr Sheehan described it as a method with "moderate, predictive accuracy" which produces estimates of future risk based on the number of risk factors present in an individual. In the case of Mr Fisk, his total score was 75, which placed him in the moderate to high-risk category relative to other male sexual offenders. The rates of sexual recidivism for offenders within the normative samples, and who had the same scores as Mr Fisk, were between 11.4 to 25.2 per cent over five years and 22.6 to 35.5 per cent over ten years. This was said to be 2.7 times higher than the typical sexual offender identified in the sample population, and meant that 85 per cent of the offenders sampled would be expected to score below Mr Fisk. I was not advised as to the size of the sample. 66Mr Sheehan noted that Mr Fisk's rating on Static-99R had decreased since the last assessment he undertook in March 2009. Mr Sheehan explained that this was principally due to Mr Fisk's ageing, with age being one of the factors that informed the assessment. Mr Sheehan noted the limitations on the use of such a method, in that they were addressed to groups with the offenders' characteristics and not the individual offender's own circumstances. 67Second, Mr Sheehan also assessed Mr Fisk against the Risk of Sexual Violence Protocol ("RSVP"). This involved an assessment of Mr Fisk against a list of 22 dynamic risk factors, which are deemed to be important based on scientific and professional literature. Mr Sheehan concluded: "Mr Fisk is assessed as within the moderate-high risk category with regard to actuarial factors. He has exhibited and continues to exhibit relevant risk factors in all five domains of the RSVP dynamic risk assessment tool and in less structured examination of known risk factors. In my estimation, whether supervised or otherwise, Mr Fisk is highly likely to persist with regular voyeuristic sexualisation of teenage males that he sees or comes into contact with. When circumstances permit, he is likely to engage in conversation with these males, rapidly obtaining information about them, engaging in sexual conversation and flattery. At times, these males may be of legally consenting age, at other times not. The risk of these interactions escalating to a sexual offence is reliant on the vulnerability of the young male, the transient mood state of Mr Fisk and the influence of supervision to interrupt the grooming process. The overall totality of evidence suggests that Mr Fisk remains generally within the moderate-high risk category of sexual offending relative to other adult male sexual offenders. Were Mr Fisk to be unsupervised in the community in the circumstances of his presentation over recent months, I am of the view that he would present a high risk of reoffending." 68In December 2012 the Acting Senior Compliance and Monitoring Officer responsible for Mr Fisk prepared a risk management report. The report noted that the electronic monitoring of Mr Fisk had ceased on 25 November 2012 and that Mr Fisk had requested to move back to a COSP facility. Mr Fisk is reported as saying he was concerned about his safety as his identity had been revealed to a real estate agent. The report proposes a risk management plan which contemplated the inclusion of the plan's component as conditions of an ESO made in accordance with s 11 of the Act. Most of the aspects of that plan are reflected in the conditions now sought by the State, although I note the author of the report suggested a continuance of the power to require electronic monitoring. As I have stated, that is not now sought by the State.

Subsection 7(4) Reports 69As I have stated, on 31 January 2013 Garling J appointed two psychiatrists, Dr Ellis and Dr Allnut, to examine Mr Fisk and provide reports concerning their examination. Dr Ellis had previously provided a report concerning Mr Fisk around the time of his release in 2009. In his consultations in 2013, Mr Fisk disclosed to Dr Ellis that he had a sexual relationship with a 32-year-old male while resident at a COSP facility. Further, Mr Fisk gave Dr Ellis the following account of his offending behaviour: "In contrast to his account in 2009, he reported at this interview that his actions were not criminal. Although he endorses the activity reported in the witness statements and [judgments], he now states that the victims embellished their stories in order to gain compensation payments. He now does not believe he was guilty of any crime, other than to breach the current law which he views as outdated and parochial. He did not believe that his victims were harmed in any way, and that in fact they may have benefited from his life guidance, sexual exploration and material goods that he provided to them. 'In those days it was fun for them, there was no guilt about it'. The only adverse consequence he could articulate was that society shamed the victims. 'It was not the sexual act itself that harmed them'." 70Mr Fisk told Dr Ellis that he found no benefit in group sex offender treatment and that he thought that with individual treatment, "he can now feel an attraction to older males in the age range of 18 to 32". He told Dr Ellis he would "not break the law again, even if he did not believe the law was just. He reported that he did not wish to traumatise himself in the future". 71Dr Ellis endorsed both the Static 99R assessment and the RSVP assessment undertaken by Mr Sheehan, although noting the limitations on the former. Dr Ellis accepted that Mr Fisk's age is an alleviating factor regarding his risk of recidivism but noted he had not "produced a complete reduction in deviant arousal". 72Dr Ellis noted that Mr Fisk only endorsed "pro-social" - that is, non-offending behaviour - on the basis that to so act did not produce negative consequences for himself. Dr Ellis considered this unsustainable as a motivation for avoiding offending behaviour. Dr Ellis's overall assessment was that Mr Fisk falls into a group with a moderately high risk of sexual re-offending. 73Dr Allnut reported Mr Fisk's attitude to offending in different terms to those noted by Dr Ellis. He recorded Mr Fisk as stating that "he accepted that to others in society his offending was unacceptable". He said he had never wanted to be a criminal and accepted sexual interaction with boys as unacceptable. Dr Allnut reported Mr Fisk as stating that "he could not stand the trauma of offending again; he said he could not inflict it on anyone again". 74Like Dr Ellis, Dr Allnut agreed with the Static 99R and RSVP assessments undertaken by Mr Sheehan. Dr Allnut expressed caution about relying upon the Static 99R assessment, stating that he did not consider it prudent to apply its outcome to individuals. Instead, Dr Allnut undertook a detailed clinical assessment of the various factors that affected the likelihood of recidivism. Dr Allnut concluded that Mr Fisk fell into a "group of individuals with a moderate to high risk of sexual recidivism against children under age 16". Dr Allnut expressed concern about Mr Fisk's attitude towards his offences. He noted Mr Fisk understood a relationship with under-age boys was unacceptable, but considered that this was more an "objective" view rather than a "subjective" opinion. I understand Dr Allnut to be saying that in this respect, Mr Fisk understands that society disapproves of such relationship but he personally believes they are acceptable.

Dr Nielssen's Report 75Tendered on behalf of Mr Fisk was a report from a psychiatrist, Dr Olav Nielssen, dated 23 March 2012. Dr Nielssen noted that Mr Fisk had been intermittently under his care for eight years and had attended consultations on 19 October 2009, 10 December 2010, 10 January 2011 and 7 February 2011. Dr Nielssen stated that Mr Fisk had not "changed a great deal" in those eight years, although he seemed "more frail". He noted that Mr Fisk has a "longstanding tendency to see himself as something of a martyr and a victim of the system" and considered he had been "unamenable to counselling". 76Dr Nielssen was asked whether Mr Fisk was likely to commit another serious sex offence if he was not the subject of a further ESO. Dr Neilssen's answer was as follows: "I concur with the opinions expressed by Mr Sheehan, and Drs Ellis and Allnut regarding the capacity of health professionals or any other behaviour scientist to predict further offending by individual subjects. This is particularly true of rare events, such as serious sexual offences, which have a low base rate. The rate of recidivism reported in the Static 99 manual includes minor offences that would not usually attract a term of imprisonment, as well as a small number of serious offences. The probability of Mr Fisk committing a serious sexual offence in the next five years is considerably lower than the range of 11.4% to 25.2% quoted by Mr Sheehan. Hence, there is a low probability that Mr Fisk will commit a serious sexual offence in the next five years." (emphasis in original)

Section 5B Assessment 77As I have stated, the structure of the Act is such that the power to make an ESO can only be exercised in respect of someone who answers the description of "high risk sex offender". I have already addressed the definition of that phrase. 78The offences committed by the offender took place over two decades, being the 1970s and 1980s. They were described as manifestations of his "lifestyle". The particular conduct that constituted the offences was only a sample of his offending behaviour. From that point, Mr Fisk's life in the 1990s appears to have been occupied by his encounters with the justice system and investigative bodies. The bulk of his life in the first decade of the next century was spent in gaol. To a very large extent, the considerable efforts undertaken to reform him during that time failed. 79Since his release, and pursuant to the ESO made by Howie J, Mr Fisk has been under close supervision. He has not offended in the meantime. My reading of the various reports, especially those of Drs Ellis and Allnut, as well as that of Mr Sheehan, reveals that the outcome of the various programs is that Mr Fisk's sexual attraction to young males, especially those under the age of sixteen, remains, and that within his own frame of reference he regards that sexual attraction as morally defensible. However, he has learned to accept that society regards his sexual attraction to young males as abhorrent, and that society will now take strong steps to safeguard against any attempt by him to give effect to it. 80This knowledge on his part acts as a restraint on his behaviour because of his desire to avoid the ordeal of prosecution and imprisonment. However, it has its limitations. If he is left unsupervised he is likely to come to the view that he may be able to offend without being detected. Otherwise, at times of stress or when frustrated or intoxicated he may be prepared to risk detection. To an extent, his age and limited means may operate to limit the implementation of his usual modus operandi, but the incident on 28 May 2012 illustrates that that risk still remains. Moreover, it must be remembered that one of the offences a high-risk sex offender may pose an unacceptable risk of committing is a grooming offence. As I have stated, that offence can be committed without a sexual act being undertaken or directly attempted. 81I accept the assessments of Dr Ellis, Dr Allnut and Mr Sheehan as to the likelihood of Mr Fisk committing another offence if he were not supervised. 82Mr Scragg submitted I should prefer the assessment of his likely level of recidivism as stated by Dr Nielssen. I have set out that assessment above. It is not clear whether Dr Nielssen was only confining his comments to the statistical data, about which all of the experts expressed caution, or was opining on the subject of Mr Fisk's risk of recidivism generally. It also may be that Dr Nielssen considers a risk of recidivism below the range of 11.4 to 25.2 per cent as representing a low probability, although the Court was not provided with an alternative range. The relevant risk might be quantified as being in a range which is below 11.4 to 25.2 per cent, and still be unacceptably high. Further, I note that Dr Nielssen did not address the incident on the train station on 28 May 2012, which I consider to be of particular significance. The attitudes of Mr Fisk that Dr Nielssen reported (see [75]) coupled with his past history confirm my conclusion that his risk of recidivism, absent supervision, is moderate to high. 83Moreover, the risk I have identified is clearly "unacceptable". I have already described the level of risk. The consequences for a putative victim, their family and the wider community of that risk materialising would be severe. A repetition of his offending behaviour in the form of committing a grooming offence can be presumed to cause irreparable harm, as did the offences he previously committed. The success of the ESO made by Howie J is reflected in the absence of any further offences committed by Mr Fisk. The effect on Mr Fisk's freedom of making a further ESO will be significant, but ultimately does not affect my conclusion. I am satisfied to a high degree of probability that Mr Fisk poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Accordingly, he is a high-risk sex offender within the meaning of s 5B(2) of the Act. 84I have already noted how a determination that a person falls within the definition of high-risk sex offender appears to be a step that must be undertaken prior to considering whether or not to make an ESO and addressing the criteria (s 9(3)). However, the criteria in s 9(3) appear to be relevant to an assessment of whether a person falls within the definition of "high-risk sex offender" and especially to whether they pose an unacceptable risk "unless kept under supervision". I address those criteria next, but my consideration of them only confirms my conclusion that Mr Fisk falls within that definition.

Subsection 9(3)(a): Safety of the Community 85It follows from the above conclusion that I consider the safety of the community warrants the making of an ESO

Subsection 9(3)(b): Reports under s 7(4) 86I have outlined the conclusions of Dr Allnut and Dr Ellis above. Those conclusions point strongly to the making of an ESO.

Subsection 9(3)(c): Other Reports 87I have already addressed the other reports available, including those of Mr Sheehan and Dr Nielssen.

Subsection 9(3)(d): Statistical or Other Assessments 88I have described the outcome of the Static 99R assessment and Mr Fisk's assessment under the RSVP. Both point to a significant risk of recidivism if he is not supervised, although all the experts cautioned against reliance on the former.

Subsection 9(3)(e): Treatment Rehabilitation Programs 89I have described the rehabilitation treatment programs Mr Fisk undertook both prior to and since his release. The outcome of those programs, which is reflected in the finding I have made, only reinforces the need to make an ESO.

Subsection 9(3)(f) and (g): Offender's Compliance with Obligations 90There was nothing put forward to suggest that Mr Fisk had ever failed to comply with any parole conditions that had previously been made in respect of him. I have referred to his compliance with the conditions of the ESO made by Howie J already. There is no suggestion he has not complied with the terms of the order made by Garling J under former s 8 on 31 January 2013 and now taken to be in force under s 10A. 91Compliance by an offender with the terms of an ESO can cut both ways in considering whether the test in s 5B(2) is satisfied and otherwise whether an ESO should be made. It can indicate that any risk posed by the offender has ameliorated and they can be expected to self-regulate their behaviour in the future. However, it could also mean that the offender is only responsive to external supervision backed by sanctions such as those found in the Act. This is the case with Mr Fisk.

Subsection 9(3)(h) and (hi): Criminal History and Views of the Sentencing Court 92Subsection 9(3)(h) requires that I have regard to Mr Fisk's criminal history, including "any pattern of offending behaviour" disclosed by the history, and the views of the sentencing court. I have already addressed the material concerning this above. They inform the findings I have already made.

Subsection 9(3)(i): Other Information that is Available 93The most significant and cogent "other information" that is available is that which concerns the incident on 28 May 2012. I have already addressed that matter. 94Overall, in my view, a consideration of the factors referred to in s 9(3) point overwhelmingly to the need to make an ESO in respect of Mr Fisk.

Section 11 Conditions 95Schedule B to the final version of the Amended Summons that was handed up in court on 25 March 2012 contained 59 proposed conditions for inclusion in the ESO. Only two parts of the conditions were disputed. Those not in dispute concerned reporting and monitoring, accommodation, restrictions on employment and other activities, including contact with specified persons or children, restrictions on the consumption of alcohol and drugs, agreement to provide details of Mr Fisk's computer usage, conferral of search and seizure powers and permissions on Corrective Services officers, obligations regarding treatment and disclosure of information. The conditions also enable Mr Fisk to lodge grievances in respect of the decisions of Corrective Services. They do not include provision for electronic monitoring. 96In determining whether it is appropriate to include a particular condition, it is necessary to bear in mind that the effect of their inclusion is to expose the offender to criminal sanctions if they are breached. Thus, a proper basis needs to be demonstrated for including the condition in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Leaving aside the disputed conditions, I am satisfied that it is appropriate to include the balance of the proposed directions in the ESO.

Proposed Condition 23: Contact with persons seventeen years or under 97Mr Fisk opposed the making of proposed conditions 23(a), 23(a1) and 23(b), which in their final form as sought by the State were as follows: "23. The defendant must not: (a) approach or initiate any contact with any child or young person who is reasonably known to the defendant to be 17 years or under; (a1) associate, encourage, request or maintain any contact with any child or young person 17 years or under; (b) use any other person to approach, associate, initiate, encourage, request or maintain any contact with any child or young person 17 years or under; [(c) and (d) omitted] unless the defendant: (e) has prior written permission of the Departmental supervising officer; and (f) is in the presence of an appropriate adult, being a person previously approved in writing by the Departmental supervising officer for the purposes of this condition." 98Thus proposed subclause 23(a) proposes a restriction on "approach[ing] or initiat[ing]" contact with anyone who is "reasonably known to the defendant to be seventeen years or under", whereas subclauses 23(a1) and 23(b) are addressed to sustained or ongoing interaction with anyone who is in fact 17 years or under. The rationale for the difference between the two is said to be to allow Mr Fisk to initiate some innocent contact with someone whom he believes is older than seventeen and not contravene the ESO in the event that his bona fide assessment of their age is wrong. However, in the event he seeks to maintain an association with a young adult beyond that initial contact, then he would either have to definitively establish they were eighteen or over or seek departmental permission to do so. 99The imposition of "appropriate" conditions under s 11 is governed by the overriding purpose of mitigating the identified risk of the high-risk sex offender committing either serious sex offences, or at least offences of a sexual nature. Although it has already been adverted to, this requires consideration to be given to the relevant offences that Mr Fisk may be at risk of committing. 100In New South Wales the so-called "age of consent" for heterosexual and homosexual sex is sixteen. This is determined by omission. Section 66C of the Crimes Act establishes a range of offences where a person has sexual intercourse with a child under the age of sixteen years. 101Further, s 73(1) proscribes any person from having sexual intercourse with another person above the age of sixteen and under the age of seventeen and who is under his or her "special care". This offence is punishable by a term of imprisonment of eight years. Section 73(2) proscribes any person from having sexual intercourse with another person above the age of seventeen and under the age of eighteen and who is under his or her "special care". This offence is punishable by a term of imprisonment of four years. Persons in various categories of authority are defined as having a person under their "special care", which is defined in s 73(3): "(3) For the purposes of this section, a person (the victim) is under the special care of another person (the offender) if, and only if: (a) the offender is the step-parent, guardian or foster parent of the victim or the de facto partner of a parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the offender, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional." 102Two other sets of offences should be noted. First, there is the general proscription presently found in s 61L on having sexual intercourse with a person without their consent. Second, I have already described the grooming offences created by s 66EB of the Crimes Act. As I have stated, the offences created by that section can all be committed without the offender in fact having sexual intercourse or directly attempting to have sexual intercourse with a child under the age of sixteen years. 103Mr Scragg submitted that the imposition of proposed conditions 23(a), (a1) and (b) were not "appropriate". He contended that, if the words "under the age of 16" were substituted for "17 years or under" in the proposed conditions, then they would not be objectionable. In effect, he submitted that, to the extent the proposed clause seeks to prevent Mr Fisk from associating with males sixteen and above, it goes beyond addressing the risk of Mr Fisk committing a serious sex offence and instead is only addressing some perceived risk of him having sexual relations with a young adult male aged 16 or 17 which, if consensual, is not illegal. Mr Scragg referred to part of Dr Nielssen's report which addressed this proposed condition. Dr Nielssen commented that: "This condition is puzzling, since it would not be an offence for Mr Fisk to have a consensual sexual encounter with a person aged over sixteen. The rationale for this variation appears to be that associating with a seventeen year old might lead to meeting a fifteen year old." 104Ms Mahony submitted there was a sufficient connection between the proposed condition and a risk of Mr Fisk committing a "serious sex offence." She submitted it guarded against the commission by Mr Fisk of an offence under s 73 of the Crimes Act which, as I have explained, can be committed against a person aged either 16 or 17. I do not accept that submission. Before Mr Fisk could be considered at risk of contravening s 73, he would have to be in a position of "special care" vis-à-vis a victim. I have set out the definition of "special care". Although the conduct of Mr Fisk that led to his original convictions, and in particular his housing of victims, might have led to his meeting that definition, his current circumstances and the other conditions to be imposed on him make it very unlikely he would ever satisfy that definition. 105Ms Mahony also submitted that the proposed condition was necessary or appropriate to address the risk of Mr Fisk committing offences against persons under the age of sixteen. She referred to the following passages in the report of Dr Ellis: "In regard to a specific restriction on non-association with persons under the age of 18, this is recommended. Mr Fisk has been diagnosed with a paraphilia, hebephilia and this involves sexual attraction to young males. This attraction is not purely to the body type, but also to the control and power the older person exerts over a younger person. As this paraphilia has directly driven the previous offending behaviour, efforts should be made to reduce any behaviour that simulates this drive, even if the behaviour is technically legal. By engaging in behaviour that simulates the offending behaviour, this provides a reinforcement which is not helpful in reducing actual propensity to offend. By directing activity to age-appropriate goals, this will assist in overall treatment planning." 106Ms Mahony also referred to the following statement by Dr Allnut in his report: "The problem for [Mr Fisk] is that by pursuing relationships with males [aged] 17, he potentially could expose himself to males of illegal age and thus put himself in a position to offend; with his ongoing hebephilic interest, opportunity remains a concern." 107In addition, in his affidavit sworn 11 February 2013, Mr Sheehan stated: "A focus in the supervision of Mr Fisk from both therapy and case management has been to shift his attention and activities from those associated with teenage males towards more peer aged themes. These efforts at encouragement and persuasion have been ineffective and Mr Fisk has maintained a centre of gravity around young males. His practice of approaching young people whose age is ambiguous and establishing they are over 16 years is an analogue to his sexual offending and creates ongoing high-risk situations by maximising the risk of contact (either direct or incidental) with males aged 16 years or younger. Given the absence of intrinsic motivation to desist from his practice of approaching young people whose age is ambiguous, I would support prohibition of unsupervised contact with persons under the age of 18 years. Given Mr Fisk's apparent compliance with direct conditions, this may add a further buffer to risk by dissuading Mr Fisk from approaching young males of ambiguous age." 108In my view it is the interaction of both the factors identified by Dr Ellis, Dr Allnut and Mr Sheehan that elevates to an unacceptable degree the risk that would follow if Mr Fisk is free to pursue associations or contact with sixteen or seventeen year old males. Such contact would involve a heightening of his sexual interest in young men when the only satisfactory course toward stopping him from re-offending is that he be re-orientated towards older males. If Mr Fisk were to resume having an active sexual interest in young men of sixteen and seventeen, then I do not accept that he would be able to prevent himself from pursuing his interest in males of a younger age. The risk this poses is heightened by the possibility - or even likelihood - that via contact with young males aged sixteen or seventeen Mr Fisk would come into contact with other males aged under sixteen. 109Groups of teenage boys do not draw strict distinctions in their peer groups on the basis of age. This is as much true for boys in Mr Fisk's preferred target group of the different, alienated or neglected, as opposed to those who are popular and supported. If Mr Fisk were able to groom a seventeen year old, his appetite to groom a fifteen year old would be heightened and his opportunity to do so would increase. As I have stated, grooming an under age male is a serious sexual offence in and of itself. 110I am conscious that to make proposed conditions 23(a), (a1) and (b) would involve denying to Mr Fisk innocent forms of human association, bearing in mind he is socially isolated. However, in essence, the legislation permits and, in my view, in the case of Mr Fisk requires that to avoid the risk of him committing offences against males under sixteen, a line be drawn preventing him associating with males under eighteen, even if that conduct would otherwise be lawful. Accordingly, pursuant to s 11, I will direct that Mr Fisk comply with proposed condition 23.

Proposed Condition 33 111Proposed condition 33 provides: "The defendant must not use or attempt to use equipment for the purposes [of] recording still or moving photographic images of persons reasonably known by the defendant to be the age of 17 years or under." 112Mr Scragg submitted there is nothing in the material which suggests any concerns about Mr Fisk recording such images. He otherwise repeated his submissions in relation to proposed conditions 23(a), (a1) and (b). I accept that there is no evidence of any particular concern about Mr Fisk recording images of young males. However, I nevertheless consider the proposed condition represents an appropriate measure for assisting in preventing Mr Fisk from indulging his sexual attraction to young males and re-orientating him towards older males. I shall direct accordingly.

Conclusion and orders 113It follows that I will make an ESO for a period of three years which will include the conditions to which I have referred. The conditions will be initialled by me and placed with the court file. Copies of those conditions will be handed to the parties and they will appear as a schedule to the published version of this judgment. 114Finally, I note that on 11 August 2009, Howie J made a non-publication order in respect of Mr Fisk and his places of residence, the persons with whom he proposed to reside and the name used by him when he was placed in the witness protection program. This order was varied by Rein J on 4 December 2012. For the sake of clarity and for the reason given by Howie J in his Honour's judgment at [219], I will make a similar order in these proceedings. 115Accordingly, pursuant to s 9(1)(a) of the Act, I make an extended supervision order in respect of the defendant, Colin Fisk, for a period of three years from 28 March 2013 and, pursuant to s 11 of the Act, direct that for the period of that extended supervision order, the defendant comply with the directions that have been initialled, dated by me and placed with the Court file. 116I further order there be no publication of (a) the present place of residence of the defendant, Colin Fisk, (b) any approved place of future residence of Colin Fisk while under the conditions of the extended supervision order made by the Court, (c) any material that would tend to identify a person with whom Colin Fisk intends to reside as permitted under the conditions of the extended supervision order; and (d) the name by which the defendant was known when on witness protection, provided that this non-publication order does not apply to any officer of the Department of Justice or the Department of Corrective Services, the Attorney General or the New South Wales Police Force, in so far as such disclosure is reasonably necessary in carrying out any function under the Crimes (High Risk Offenders) Act 2006, including the making of any applications under that Act in respect of Mr Fisk. 117I order that the exhibits be returned.

Schedule [see [113]) EXTENDED SUPERVISION ORDER: CONDITIONS APPLICABLE TO COLIN JOHN FISK Oversight For the purpose of these conditions, the Departmental supervising officer is the person authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Attorney General and Justice ("the Department"). Corrective Services NSW is a division of the Department. The Community Compliance and Monitoring Group ("the CCMG") and Probation and Parole are part of Corrective Services NSW. Reporting and monitoring obligations 1.For the duration of the supervision order, the defendant must accept the supervision of Corrective Services NSW, including the supervision of the CCMG or Probation and Parole and / or any other part of Corrective Services for any period that the supervision of the defendant is transferred. 2.The defendant must report personally once a week to the Departmental supervising officer or otherwise as directed by that officer. 3.The defendant must comply with any reasonable direction given by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 4.If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his movements in advance by providing a schedule. The schedule must be: a.in writing; b.for a period of 7 days ("the schedule period"), unless a shorter schedule period is approved by the Departmental supervising officer; and c.be given to the Departmental supervising officer at least 3 days in advance of the schedule period. 5.The defendant must notify the Departmental supervising officer of any change to the schedule at least 24 hours in advance, unless a shorter period is approved by the Departmental supervising officer. 6.Condition 5 does not apply in the case of emergency, including if the defendant requires urgent medical attention, and he is unable to notify the Departmental supervising officer. 7.The defendant must respond accurately to the best of his knowledge and ability to all enquiries by his Departmental supervising officer, or any other corrective services officer who may from time to time be allocated to the defendant's case, about his whereabouts and movements generally. Accommodation 8.For the duration of the order the defendant must reside at accommodation approved by the Departmental supervising officer. 9.Except with the prior approval of the Departmental supervising officer, the defendant must not permit any person to reside either temporarily or a permanent basis, for any period at the defendant's approved accommodation. 10.Except with the prior approval of the Departmental supervising officer, the defendant must not stay overnight, or for any other temporary period, at a place other than approved accommodation. 11.The defendant must accept visits at his approved accommodation, including visits without prior notice, by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 12.The defendant must be at his approved residence between 11pm and 5am (or such other hours as may be specified by the Departmental Supervising Officer) unless his presence at another place during those hours has been approved by his Departmental Supervising Officer. 13.The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate. Restrictions on employment and other activities Employment 14.The defendant must not engage in volunteer work, practical training as part of an educational or vocational course, or paid or unpaid employment (including self employment) (collectively referred hereto as "employment") other than that which has been approved by the Departmental supervising officer. 15.The defendant must notify his Departmental supervising officer of: a.the nature of his proposed employment; b.any offer of employment; c.the hours of work each day; d.the name of his proposed employer; and e.the address of the premises where he will be employed. 16.Without limiting condition 3 above, if directed to do so by the Departmental supervising officer, the defendant must make his employer aware of his offending history and that he is subject to any interim supervision order or extended supervision order and the terms of the order. 17.The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may disclose to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and of the terms of the order. Non-associations generally 18.The defendant must not associate with any persons specified by the Departmental supervising officer. 19.Without limiting condition 18 above, except with the prior permission of the Departmental supervising officer, the defendant must not knowingly associate with any person convicted of a "serious sex offence" or an "offence of a sexual nature" as defined by the Act (except in the course of living in the COSP Centre or other Departmental facility or attending the community-based maintenance program conducted by the Forensic Psychology Services section of Corrective Services NSW). 20.Should the defendant propose to befriend another person whom he knows to be the parent or guardian (or otherwise a person with care and control eg teacher) of a male under the age of 16 years or whom he knows to be a sibling of a male under that age he must notify the Departmental Supervising Officer as soon as reasonably possible. The Departmental supervising officer may disclose the defendant's offence history to the other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the male(s) under the age of 16 years being related to that person, or who from time to time be in that person's care, custody or control. 21.The defendant must obtain written permission and approval in advance from his Departmental supervising officer prior to joining or affiliating with any club or organisation. 22.The defendant must not frequent or visit any place or district specified by the Departmental supervising officer. Non-association with children 23.The defendant must not: a.approach or initiate any contact with any child or young person who is reasonably known to the defendant to be 17 years or under; a1. associate, encourage, request or maintain any contact with any child or young person 17 years or under; b.use any other person to approach, associate, initiate, encourage, request or maintain any contact with any child or young person 17 years or under; c.attend any schools, pre-schools, day care centres, amusement parlours, amusement parks, theme parks, camping groups, caravan parks, children's playgrounds, parks and playing fields; or d. attend any such further place, where children or a child may from time to time be present, should such a direction not to attend be given by the Departmental Supervising officer; unless the defendant: e.has prior written permission of the Departmental supervising officer; and f.is in the presence of an appropriate adult, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition. Alcohol and drugs 24.The defendant must not, without prior approval of the Departmental supervising officer, possess or consume any alcohol (including any alcohol-based products such as methylated spirits). 25.The defendant must not: a.possess or consume any illicit drugs; or b.possess any prescription medication other than prescription medication specifically prescribed to the defendant by a medical practitioner in the quantities prescribed, or abuse prescription medication or other forms of medication. 26.The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer or any other officer, who from time to time is allocated to his supervision. 27.The defendant must attend and participate in such programs and courses relating to drugs and alcohol (including residential programs), as directed by the Departmental supervising officer. 28.The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of the Departmental supervising officer. Access to the Internet and pornography 29.The defendant must provide any details relating to his internet access including providing his Internet Service Provider (ISP) address, if and as directed by the Departmental Supervising Officer. 30. The defendant must comply with any direction made by the Departmental supervising officer regarding access to the internet by him. 31.If and as directed by the Departmental supervising officer, the defendant must: a.permit the Departmental supervising officer, and any person ("the technician") employed or engaged by or on behalf of the Department, to access and inspect any computer or other device (including mobile phone or tablet computer) owned by the defendant, including the temporary removal of the computer or other device from his place of residence or his person for the purpose of inspection; b.take all available steps to permit the Departmental supervising officer and the technician to have access to and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant; c.provide the Departmental supervising officer and the technician with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone or tablet computer) owned or used by the defendant, including providing them with any required passwords; d.permit the Departmental supervising officer and the technician to make copies of any files or materials on any computer or other device (including mobile phone or tablet computer) owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending. Vehicles 32.The defendant must notify his Departmental supervising officer of the make, model, colour and registration number of any vehicle: a.owned by him; or b.driven or to be driven by him, whether hired or otherwise obtained for his use. Recording images 33.The defendant must not use or attempt to use equipment for the purposes or recording still or moving photographic images of persons reasonably known by the defendant to be the age of 17 years or under. Search and Seizure 34.If the Departmental supervising officer reasonably believes that a search (of the type referred to in sub-paragraphs c to e below) is necessary: a.to monitor the defendant's compliance with the extended supervision order or an interim supervision order; or b.because the Departmental supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence; then the Departmental supervising officer may direct, and the defendant must submit to, a: c.search and inspection of any part of, or any thing in, the defendant's approved accommodation; d.search and inspection of any part of, or any thing in, any vehicle owned or hired by the defendant; and/or e.search and examination of his person in his approved accommodation. 35.For the purposes of paragraph 34e*: a.a search of the defendant means either or both a garment search or a pat-down search; and b.to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the defendant, or by a corrective services officer of the same sex as the defendant under the direction of the Departmental supervising officer concerned. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. c.During a search carried out pursuant to paragraph 34, the defendant must allow the Departmental supervising officer to seize any thing found in the defendant's approved accommodation, any vehicle owned or hired by the defendant, or on the defendant's person, whether in the defendant's possession or not, which the Departmental supervising officer reasonably suspects will compromise the defendant's compliance with the extended supervision order or an interim supervision; or which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence. Personal details and appearance 36.The defendant must not use another name other than that by which he was known during his period on witness protection without the prior approval of the Departmental supervising officer. 37.The defendant must not, without the approval of the Departmental supervising officer, change his appearance to the extent that he cannot be easily recognised. 38.If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer. 39.The defendant must provide his Departmental supervising officer with information regarding any tattoos or permanent distinguishing marks that the defendant has (including details of any tattoo or mark that has been removed). Medical intervention treatment obligations 40.The defendant must undergo a comprehensive assessment, as recommended by a treating or consulting clinician, to determine what is required for treatment in respect of the defendant's potential for sex offending. 41.The defendant must accept psychological and psychiatric treatment as may be provided by a treating clinician. 42.The defendant must take any anti-psychotic, anti-libidinal (including SSRI's) or other prescribed medication if and as prescribed by a medical practitioner. The note at paragraph 47 below applies. 43.The defendant must not take any medication or substance which, to the defendant's knowledge, may affect the effectiveness of any medication prescribed under condition 42 being taken by the defendant, unless the defendant's treating medical practitioner prescribes such medication. 44.If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, he is to notify his Departmental supervising officer within 24 hours of ceasing to take the medication. 45.The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by a treating clinician. 46.If directed by his Departmental supervising officer, the defendant must accept and participate in maintenance or other rehabilitation programs as may be offered to him, including the maintenance program provided by the Forensic Psychology Services. 47.It is noted that the "reasonable directions" (in condition 3) and the participation in treatment (in conditions 41 and 42) do not include participation in treatment, or requiring the defendant to take any medication that may be prescribed, without his informed consent. Disclosure of information 48.The defendant must disclose to the Departmental supervising officer the identity of any treating or consulting clinician that he attends, as soon as reasonably practicable. 49.The defendant must consent to the disclosure of confidential medical information as between any treating or consulting clinician and the Departmental supervising officer. 50.The defendant must consent to his Departmental supervising officer and other officers from the Department (including from Corrective Services NSW) collecting and using all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment provided that only the witness protection name is used when collecting information from person who know the defendant by the witness protection name, and only the name Colin John Fisk is used when collection information from persons who know the defendant by that name. 51.The defendant must agree to the disclosure of all information between his Departmental supervising officer, other officers from the Department (including from Corrective Services NSW), any treating or consulting clinicians. 52.The defendant must provide his Departmental supervising officer details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 53.The defendant must provide his Departmental supervising officer details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 54.The defendant must provide his Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection. 55.The defendant must provide his Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet or other electronic communication service. Review of grievance 56.In the event the defendant is aggrieved by any decision of the Departmental supervising officer, he may set out his grievance, in writing, to the Commissioner of Corrective Services who is to consider his grievance and make appropriate directions as to supervision, if required. Review of order 57.The conditions of the extended supervision order to which the Defendant is subject shall be reviewed by the Commissioner every 12 months from the date of these Orders. 58.The purpose of a review under condition 57 is for the Commissioner to consider any possible adjustments of the conditions of the extended supervision order and/or consideration by the State as to whether an application should be made to the Court to vary the conditions if considered appropriate. For the purposes of this review, the Commissioner may consult with (either jointly or separately) any treating or consulting clinician and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer. 59.Following a review under condition 57, the reviewer must notify the defendant in writing of the result of the review.

Amendments 19 April 2013 - On 19.04.13 "34e" was substituted for "3e" in the opening words of Condition 35, pursuant to UCPR 36.17. Amended paragraphs: Condition 35 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2013

Judgment - EX TEMPORE 1This is an application under the Crimes (High Risk Offenders) Act 2006. The defendant to the application, Colin Fisk, has been convicted of a number of sexual offences against children. He has served various custodial sentences, the last of which expired in May 2009. 2Prior to the expiry of his custodial sentence, the State of New South Wales made an application under the Act, then known as the Crime (Serious Sex Offenders) Act, for an "extended supervision order" (ESO) against Mr Fisk. As its name implied, such an order provides a regime for the supervision of someone who is assessed as representing an ongoing risk of committing serious sex offences. 3The application made by the State was heard by Howie J. On 11 August 2009 his Honour published his judgment (State of New South Wales v Fisk [2009] NSWSC 778). His Honour made an ESO concerning Mr Fisk. It had a duration of three years and six months. Pursuant to s 11 of the Act, his Honour specified a number of conditions attaching to the ESO, which included the conferral of a power on the relevant Corrective Services officers to require that Mr Fisk be subject to electronic surveillance. The ESO made by Howie J was due to expire on 11 February 2013. 4On 21 January 2013 the State filed a summons in this Court seeking a further ESO for a five year period. Attached to that summons was a set of proposed conditions. 5On 31 January 2013, Garling J made an interim supervision order in accordance with former s 8 of the Act (now s 10A). Pursuant to s 7(4), his Honour also ordered that Mr Fisk attend two appointments with specified psychiatrists, Dr Ellis and Dr Allnut. They provided reports which were tendered. 6On the day the matter was listed for hearing Counsel for the State, Ms Mahony, advised that the Crown was only seeking the ESO for a period of three years and that the proposed conditions had been revised. The final form of the proposed ESO and its accompanying conditions were reflected in a version of the Amended Summons that was handed up in Court after lunch on the first day. 7Counsel for Mr Fisk, Mr Scragg, advised the Court that Mr Fisk did not oppose the making of the ESO sought by the State, save for proposed conditions 23(a), 23(a1), 23(b) and 33. As I will explain, the lack of opposition or even consent of Mr Fisk does not relieve the Court of determining whether the criteria for the making of an ESO in the proposed terms have been satisfied. 8The Court received great assistance from Counsel. Ms Mahony's submissions were comprehensive, and Mr Scragg's submissions were appropriately focused.

The Crimes (High Risk Offenders) Act 2006 9The Act, including its title, was substantially amended with effect from the first day of the hearing by the Crime (Serious Sex Offenders) Amendment Act 2013. The Act as amended addresses two categories of persons: high risk sex offenders and high risk violent offenders. Mr Fisk is said to fall into the former category. Section 5B defines high risk sex offender as follows: "High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence." 10The phrase "serious sex offence" is defined in s 5(1) which provides: "(1) For the purposes of this Act, a serious sex offence means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), (a1) an offence under section 61K or 66EA of the Crimes Act 1900, (b) an offence under section 38, 86 (1) (a1), 111, 112, 113 or 114 (1) (a), (c) or (d) of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for 7 years or more, and includes: (c) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and (c1) an offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act, and (d) any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act." 11Sections 5B and 5C confer on this Court two significant powers in respect of "high risk sex offenders". They provide: "5B High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. 5C Extended supervision orders for high risk sex offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk sex offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk sex offender extended supervision order." 12Sections 5H to 7 deal with the making of an application for an ESO. Section 9 addresses the determination of the application. It provides: "Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. ... (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). (4) In this section, a relevant offence means: (a) in the case of an application for a high risk sex offender extended supervision order - a serious sex offence, or (b) in the case of an application for a high risk violent offender extended supervision order - a serious violence offence." 13Section 10 deals with the term of the ESO. An ESO operates from the time it is made or when the offender's current custody or supervision expires, whichever is the later (s 10(1)). It expires at the end of the period specified in the ESO, but such period cannot exceed five years (s 10(1A)). 14Section 11 provides that an ESO may direct the offender to comply with such conditions as the Court "considers appropriate". A non-exhaustive list of the types of conditions that can be imposed is specified in ss 11(a) to (j). 15The criteria now found in s 5B(2) and (3) are similar to those previously found in former s 9(2) and (2)(a) of the Act, which provided that: "(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence." 16These former provisions need to be considered with former s 17(1) to (3) concerning the making of continuing detention orders which provided that: "(1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order. (3A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence." 17One of the statutory predecessors to these sections, former s 9(2), provided that an ESO could only be made if the Court was "satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision". The previous version of s 17(2) to that which I have extracted above (in [16]) was in a similar form. 18In Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 70 NSWLR 448, the Court of Appeal found that "likely" in this context denoted a degree of probability "at the upper end of the scale, but not necessarily exceeding 50%" (at [89] per Giles and Ipp JJA). In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] the Court of Appeal explained the interaction between this aspect of the test and the phrase "high degree of probability" as follows: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' as explained in [TSL v Secretary to the Department of Juvenile Justice (2006) 14 VR 109]." 19The concept of "high degree of probability" was retained in the form of ss 9(2) and 17(2), introduced after the Court of Appeal's decision in Tillman (set out in [15] and [16] above), and is now to be found in s 5B(2). Thus, the above discussion in Cornwall is in that respect still applicable. The Court of Appeal's explanation of the phrase "likely" in Tillman was enacted into statutory form in ss 9(2A) and 17(3A) introduced after that decision (see [15] and [16]), and now finds expression in s 5B(3). 20The expression "unacceptable risk of committing a serious offence" was introduced in ss 9(2) and 17(2) after the Court of Appeal's decision in Tillman (see [15] and [16]), and the same phrase is now to be found in s 5B(2). In State of New South Wales v Richardson (No 2) [2011] NSWSC 276; 210 A Crim R 220 at [90], Davies J discussed the equivalent phrase in former s17(3) stating: "Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words 'a high degree of probability'. The second is the notion that 'unacceptable risk' involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand." 21Ms Mahony submitted the same approach should be adopted for s 5B(2) of the Act in its present form. In the absence of further argument, I will act upon that basis. However, I note two points. First, Ms Mahony's submission appears to involve the proposition that the phrase "kept under supervision" in s 5B(2) means supervision either by an ESO or while in detention. That contention draws support from s 5D(1). 22Second, the structure of the Act in its current form appears to require that a determination that a person falls within the definition of "high risk sex offender" be undertaken prior to considering whether or not to make an ESO. It appears that, it is not until that latter stage, that the criteria in s 9(3) are required to be addressed. This is curious in that it is very hard to imagine a case in which a person could be found to satisfy the definition of being a "high risk sex offender" but that a consideration of the criteria in s 9(3) would nevertheless result in the Court dismissing the application. The position is different under s 17(1) where, on an application for an extended detention order, the Court can either make that order, make an ESO or dismiss the application. A consideration of the equivalent of the criteria of s 9(3) found in s 17(4) could certainly provide guidance as to whether to make a detention order or an ESO.

Consent Orders 23It follows from the above that the foundation for the Court's power to make an ESO is a determination that the offender meets the definition of "high risk sex offender" under s 5B(2) of the Act. In turn, this requires the Court to be "satisfied" of a particular matter. Without the Court being so satisfied, there is no power to act. It follows that, even if the parties before the Court consented to the making of an ESO with conditions, that would not relieve the Court of the task of determining the matter for itself. The parties cannot by their consent confer on the Court a power to make orders that it does not possess (Thomson Australian Holdings Pty Ltd v The Trade Practices Commission [1981] HCA 48; 148 CLR 150). If the power of the Court to make an order is predicated on the Court being "satisfied" of a particular matter then the parties' consent does not establish that state of satisfaction (see, for example, Oriental Carpet Department Store Pty Ltd v Supacenta Pty Ltd [2003] NSWSC 783 at [13] to [15] per Young CJ in Eq). This is especially so in litigation of the present kind that is intended to result in orders for the protection of the public.

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